Manage v Minister for Immigration

[2019] FCCA 1558

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANAGE v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1558

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Class TU) (subclass 573) visa – cancellation of Student Visa – cancellation decision affirmed by the Migration Review Tribunal – decision of the Migration Review Tribunal set aside by the Federal Court and remitted to the Administrative Appeals Tribunal – cancellation decision set aside by the Administrative Appeals Tribunal – re-application for Student Visa – application rejected by the Minister for Immigration and Border Protection – application for review dismissed by the Administrative Appeals Tribunal – application for judicial review – application for judicial review dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.368D, 379C, 379G

Migration Regulations 1994 (Cth), cl.573.211of Schedule 2

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

First Applicant: NALIN PRIYANTHA MARAKKALA MANAGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2003 of 2016

Judgment of: Judge Blake

Hearing date: 22 May 2019

Date of last submission: 22 May 2019

Delivered at: Melbourne

Delivered on: 7 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: PLS Lawyers

Advocate for the First Respondent: Ms Wong

Counsel for the Second Respondent: No appearance

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. The application filed on 19 September 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2003 of 2016

NALIAN PRIYANTHA MARAKKALA MANAGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review (‘Application’) of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 23 August 2016.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a temporary (Class TU) (Subclass 573) student visa (‘the Visa’).

2. For the reasons set out below, I have decided to dismiss the Application.

Background

1. The background was conveniently set out in the written submissions of the First Respondent. Counsel for the Applicant agreed with this summary. I adopt that summary of the background of the matter.

2. The Applicant arrived in Australia as the holder of a student (subclass 573) visa on 22 August 2005. The Applicant’s most recent student visa was a Subclass 573 visa that was granted on 26 October 2011 and was valid until 30 August 2013. That visa was cancelled on 18 June 2012 and the cancellation decision was affirmed by the (then) Migration Review Tribunal (‘MRT’) on 15 August 2013. On 1 July 2014, the Federal Court set aside the MRT decision and remitted the matter to the Tribunal for reconsideration. On 1 February 2016, the Tribunal set aside the cancellation decision.

3. On 9 March 2016, the Applicant applied for the Visa. On 22 April 2016, a delegate of the Minister refused to grant the Visa on the basis that the Applicant did not satisfy clause 573.211of Schedule 2 to the Migration Regulations 1994 (‘Regulations’).

4. On 9 May 2016, the Applicant lodged an application for review with the Tribunal and gave the Tribunal a copy of the delegate’s decision and refusal notification letter with his application.

5. On 23 August 2016, the Tribunal affirmed the decision of the delegate not to grant the Applicant the Visa.

The Proceedings in this Court

1. On 19 September 2016, the Applicant filed the Application for review and Affidavit in support in this Court.

2. Orders were made by consent by Registrar Caporale on 15 March 2017 which provided, among other things, as follows:

   a)

   the matter be listed for a Final Hearing before Judge McNab on

   
   

   22 February 2019 at 10.00am;

   b)the Minister file and serve a Court Book by 29 March 2017;

   c)

   the Applicant file any amended application with proper particulars of the grounds of the application, any affidavits and a supplementary Court Book, if any, and written submissions by

   
   

   19 April 2017; and

   d)the Minister file and serve written submissions by 9 May 2017.

3. The Minister filed a Court Book on 22 March 2017, and submissions on 9 May 2017.

4. The Applicant filed submissions on 12 May 2017.

5. The matter was subsequently re-listed and re-docketed to me to be heard on 22 May 2019 at 10.00am. A notice of listing was sent to this effect on 11 February 2019.

The Decision of the Tribunal

1. The Decision of the Tribunal is brief. It is set out in full below.

   1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 April 2016 to refuse to grant the visa applicant a student (Temporary) (Class TU) Subclass 573 Visa under the Migration Act 1958 (the Act).

   2.  At the hearing on 23 August 2016 the Tribunal made an oral decision and gave an oral statement of decision and reasons.  The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

   3. To be granted a student visa, applicants must satisfy a range of criteria set out in the Regulations.

   4. In your case, to satisfy cl.573.211 you needed to lodge your application no more than 28 days from when you were notified the Tribunal had made the decision to set aside the cancellation decision.

   5. Your previous 573 visa was cancelled on 18 June 2012. You appealed that decision to the then MRT and on 15 August 2103 the MRT affirmed that decision.

   6. On 10 September 2013 you appealed to Federal Court to review the MRT decision. The Federal Court remitted the matter to the then MRT to be re-heard.

   7. It came back to this Tribunal and on 1 February 2016 a decision was made to set aside the previous decision to cancel your visa. This meant your visa was not cancelled.

   8. You were notified of that decision by email on 1 February 2016 after which you had 28 days to lodge a new application.

   9. You lodged your application for a new student visa on 9 March 2016. Because this was more than 28 days since you were notified of the decision not to cancel your visa, you do not meet the requirements of 573.211

   10. This is not a matter in which the Tribunal has discretion

   11. As your application does not meet an essential requirement for the grant of a visa, I must affirm the decision under review

   12. This means the original decision of the Department remains

   DECISION

   13. The Tribunal affirms the decision under review.

Consideration

1. At the outset of the hearing, Counsel for the Applicant indicated that he wished to make oral submissions which had not been raised in the Applicant’s written submission. He indicated further that he had not discussed the nature of the submission he wished to raise with Counsel for the Minister.  Finally, Counsel for the Applicant indicated that while the submission to be put was a new one, it amounted to a particular of Ground 1 in the Application. He further indicated that the evidence upon which the submission was based was contained in the Court Book.

2. I stood the matter down to allow Counsel to confer as to the appropriate course of action.  Subsequent to this, Counsel for the Minister indicated that she was prepared to proceed with the hearing.  On that basis, I permitted the Applicant to make submissions which had not been previously articulated.

3. In the course of this exchange, Counsel for the Applicant indicated that Grounds 3 and 4 in the Application would not be pressed. Accordingly, the matter proceeded on the basis that only Grounds 1 and 2 were in issue.

4. Grounds 1 and 2 of the Application are in the following terms:

   1. That the Administrative Appeals Tribunal fell into jurisdictional error when it took into account irrelevant evidence in determining the application for review. 

   2. That the Administrative Appeals Tribunal fell into jurisdictional error when it incorrectly applied and/or failed to correctly apply and/or misinterpreted and/or failed to correctly interpret the Migration Act 1958 and the Migration Regulations (1994) in particular clause 573.211 in Schedule 2 of the Migration Regulations (1994) in that the Applicant was required to make the application for a student visa within 28 days of the decision of the Administrative Appeals Tribunal in case number 1413542 made on 29 January 2016 and notified to the Applicant by email on 1 February 2016;

5. A critical issue in these proceedings is the operation of clause 573.211 of the Regulations. Subclauses (1) and (3) of clause 573.211 are of particular relevance and are set out below.

   (1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).

   ….

   (3) An applicant meets the requirements of this subclause if:        

   (a) the applicant is not the holder of a substantive visa; and        

   (b) the last substantive visa held by the applicant was:        

   (i) a student visa; or        

   (ii) a special purpose visa; or        

   (iii) a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or        

   (iv) a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or        

   (v) a Subclass 497 (Graduate - Skilled) visa; and        

   (c) the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after:        

   (i) the day when that last substantive visa ceased to be in effect; or        

   (ii) if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation - the later of:        

   (A) the day when that last substantive visa ceased to be in effect; and        

   (B) the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal's decision; and        

   (d) the applicant satisfies Schedule 3 criterion 3005.        

6. The Applicant’s written submissions in this matter were brief. The relevant paragraphs are as follows:

   3.        [the decision of the Tribunal on 1 February 2016]  had the effect of reinstating the student visa and making that visa "alive" allowing the Applicant to validly be in Australia and have available to him all the privileges, rights and other benefits of that visa.

   4.        This included the right to apply for another substantive visa.

   5.        That being the situation the Applicant was entitled to and did apply for another substantive visa.

   6.         Had the Applicant's visa not been cancelled in the first place the Applicant would have been able to make an application for another substantive visa.

   7.        This opportunity to him was denied by the unlawful cancellation.

   8.        By setting aside the cancellation the effect was to give the Applicant that opportunity he was deprived.

   9.        The Applicant validly exercised that opportunity.

   10.      However, that opportunity was again thwarted unlawfully by the delegate and the Tribunal subsequently.

   11.      In addition, there is/was no evidence before the Tribunal that the Applicant actually himself received the notification on 1 February 2016.

   12.      The Applicant made application for a substantive visa as soon as he himself became aware of the decision of the tribunal revoking the unlawful cancellation.

   13.      The application was made within 28 days of him personally becoming aware of the tribunal decision.

7. As will become apparent from what follows, the submission above bears little resemblance to the submissions that were put orally at hearing and in most respects, were not consistent with the oral submissions made during the hearing.

8. At the hearing, the Applicant conceded that he had not made a Visa application within 28 days of being notified of the Tribunal’s decision of 1 February 2016. This concession means that I do not need to consider those aspects of the written submission which appear to contend that application was made within the 28 day time period, as set out in clause 573.211 of the Regulations.

9. The submissions advanced by Counsel for the Applicant at the hearing may be summarised as follows:

   a)The Applicant made an application for a Bridging visa on 8 March 2016. This application was made after the expiry of the 28 day time frame set out in clause 573.211 of Schedule 2 of the Regulations.

   b)The notification from the Department granting the Bridging visa which is reproduced at  page 11 of the Court Book  relevantly notes:

   i)the Bridging visa operates from 3 March 2016 to 10 March 2016;

   ii)that the Applicant ‘satisfied the criteria for the grant of the visa because you intend to apply for a substantive visa’;

   iii)that the Bridging visa is granted on condition 8508 which within the document summarises the requirement as being ‘by 10am on 08/03/2016 the holder must make a valid application for a visa of a class that can be granted in Australia’

   c)the Applicant subsequently applied for the Visa. The Applicant signed an application form for the Visa on 8 March 2016, though the actual form received by the Department indicates it was received on 9 March 2016;

   d)the application for the Visa was submitted pursuant to the terms of the Bridging Visa notice issued by the Department (as summarised in subparagraph (b) above) which granted to the Applicant a right or ability to apply for a ‘visa of a class that can be granted in Australia’ (including the Visa);

   e)the Tribunal failed to consider that the Bridging Visa notice permitted the Applicant to make an application for the Visa. This constitutes the alleged error of the Tribunal.

10. It can be seen immediately that the submission outlined above does not fall within Ground 1 or 2 of the Application.  Ground 1 is concerned with the Tribunal taking into account irrelevant evidence. The submission above is that the Tribunal failed to take into account particular evidence.

11. Similarly, Ground 2 of the Application concerns itself with a failure to correctly apply, or a failure to correctly interpret, clause 573.211 of the Regulations. As I have noted, the Applicant concedes that the 28 days has expired and asserts a different basis for claiming a right or ability to submit a new application for the Visa.

12. In respect of the matters above, I note that no application was made by Counsel for the Applicant to amend the grounds of the Application.

13. Turning then to the submission that was made, I put it to Counsel for the Applicant that the effect of that submission was to reset the 28 day time period in Regulation 573.211. Counsel accepted that the 28 day period had expired. What Counsel submitted was that the words used in the Bridging visa notice, which I have extracted above, effectively granted the Applicant a right to apply for the Visa within the time period set out in the Bridging visa notice. The Applicant, it was said, exercised that right and applied for the Visa within time. I put it to Counsel that the words used in the Bridging visa notice were not the granting of any right and were merely words reflecting the Applicant’s intention to apply for a visa, or conditions pertaining to the grant of the Bridging Visa, and as such did not amount to the granting of a right to apply for the Visa. I asked Counsel to point me to the relevant statutory or regulatory power which granted the Applicant the additional right to which Counsel was referring.  Counsel was unable to point me to any relevant head of power. Instead, Counsel submitted that even if his submission as to the operation of the Bridging visa notice was not correct, the failure of the Tribunal to address at all this issue was the relevant jurisdictional error which therefore required the Court to remit the matter back to the Tribunal.

14. The submission made by Counsel for the Applicant directs attention to what constitutes jurisdictional error. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, the majority of the High Court of Australia applied the test originally set out in Craig v State of South Australia (1995) 184 CLR 163. That test effectively provides that a Tribunal falls into error of law amounting to jurisdictional error with the effect of invalidating any order or decision of the relevant Tribunal if the Tribunal:

    a)identifies the wrong issue;

    b)ask itself a wrong question;

    c)ignores relevant material;

    d)relies on irrelevant material; or

    e)in some instances, makes an erroneous finding or reaches a mistaken conclusion.

15. In this matter, as set out above, the Tribunal identified the issue before it as a review of a decision made by a delegate of the Minister on 22 April 2016 to refuse to grant the Visa. At paragraph 3 of its reasons, the Tribunal then identified that to be granted the Visa, there were a range of conditions that must be satisfied. Further, in paragraph 4 of its reasons, the Tribunal identified clause 573.211 of the Regulations as containing criteria that need to be satisfied.

16. When the matters set out above are examined, it can be seen that the Tribunal did not identify the wrong issue for consideration. Nor did it ask itself a wrong question or rely on any irrelevant material.

17. A question arises as to whether the Tribunal ignored relevant material. The submission of the Applicant may be understood as an assertion that the Tribunal ignored the Bridging visa notice and the conditions set out in that notice which the Applicant submitted gave him a right to apply for the Visa, even though the 28 day time period specified in clause 573.211 had passed.

18. There are a number of difficulties with the Applicant’s submission. Firstly, while the Applicant asserts that the Bridging visa notice granted to the Applicant a right to apply for the Visa, Counsel for the Applicant was unable to identify the statutory source of that power. Second, the submission ignores the reality of what a Bridging visa is. The Applicant’s substantive visa had expired. Obtaining the Bridging visa for a limited period enabled the Applicant to remain in the country lawfully pending any other action he wished to take. A Bridging visa, which, as the name suggests, is granted for a limited period, cannot, in my view, be taken in the absence of a statutory provision supporting the position, to be the source of a new right to apply for a substantive visa. Third, the effect of the submission would be to render ineffective clause 573.211(3) of the Regulations insofar as it seeks to impose a 28 day time limit on applications of this kind. It is to be noted that the time limit is a strict one and there is no discretion to extend it. The Applicant’s submission would render that time period ineffective.

19. When the above matters are considered, the existence of the Bridging visa and any document pertaining to it was not relevant to the question before the Tribunal. That question was, simply, whether the Applicant had satisfied the criteria for the grant of the Visa in the circumstances of his case.

20. It is to be observed, as previously stated, that the specific argument advanced by the Applicant in relation to the importance of the Bridging visa documentation differs markedly from, and is not consistent with, the submission that he made in writing to the Court on 12 May 2017.  In that submission, the Applicant asserted that the re-enlivening of his student visa by the delegate on 1 February 2016 “included the right to apply for another substantive visa”. This argument was not pressed in oral submissions before me.  Nor could it have been, given that Counsel for the Applicant accepted that the student visa that existed between 1 February 2016 and 29 February 2016, and the opportunity to renew it, had expired.

1. In his written submission, the Applicant asserted that there was no evidence before the Tribunal that the Applicant had actually himself received the notification from the delegate on 1 February 2016. I understand part of that submission to be that he did not receive the notice of the decision of 1 February 2016, and that is why he did not apply within the time period contemplated by clause 573.211.

2. In so far as this submission may be pressed by the Applicant, the following is relevant:

   a)the Tribunal’s decision of 1 February 2016 setting aside the decision to cancel the original student Visa was sent to the Applicant’s representative;

   b)The notification referred to above was sent by email to the representative;

   c)Section 379C of the Act deals with when documents are taken to have been received. Subsection (5) provides that if the Tribunal gives a document to a person by email, the person is taken to have received the document at the end of the day on which the document is transmitted;

   d)Section 379G(2) deals, relevantly, with the position of authorised recipients and provides that where a document is given to an authorised recipient such as the Applicant’s representative in this case, the Tribunal is taken to have given the document to the Applicant.

3. When the provisions above are considered, it can be seen that there is no substance to any claim that might be advanced by the Applicant that he did not receive notification of the Tribunal’s decision to effectively reinstate the existing visa on 1 February 2016. The provisions of the Act mean that the Applicant was taken to have received the notice on that day.  Accordingly, any argument that a failure to provide notice to the applicant of the decision of 1 February 2016 constitutes jurisdictional error must fail.

4. For the above reasons, I do not accept the submission made by the Applicant that the failure of the Tribunal to consider the Bridging visa notice, in the context of assessing whether the Applicant met the criteria for the grant of the Visa, constituted jurisdictional error.  Nor do I accept that any other error as to jurisdiction was committed by the Tribunal.

5. For the above reasons, I dismiss the Application and award costs to the Minister.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate: 

Date:  7 June 2019